MELLING.35.5.docx (Do Not Delete) 6/17/2014 6:30 PM LIFT THE SCARLET LETTER FROM ABORTION* Louise Melling† Thank you so much. I am delighted and honored to be here this evening to deliver the Bauer Lecture. I want to thank the students for inviting me and in particular thank them for what I understand was an interest in reproductive rights that prompted the invitation. Clearly you are compatriots in the campaign to lift the stigma from abortion. I am particularly delighted to receive this invitation from students at a law school headed by my dear friend and person extraordinaire Matthew Diller. It is a treat, pure and simple, to join you this evening. Thank you so much.1 A few years ago, I was invited to give the Constitution Day talk at Oberlin College. After I accepted the invitation to speak, I asked the staff who had most recently graduated from college what I should discuss. “What would be of most interest to students—marriage for same-sex couples, religious refusals, abortion?” To a one they responded: “What would be really bold would be to talk about abortion. No one does that. That would be really bold.” So that’s what I’m going to do today. I’m going to be bold. I’m going to talk about what is increasingly the A word in America today: Abortion. I’m going to talk about it by way of four broad points: • The challenge of the times. • What troubles me most. • The reason for passion. • The reason for hope. * This Essay is adapted from the Uri and Caroline Bauer Memorial Lecture delivered at the Benjamin N. Cardozo School of Law, Yeshiva University, on March 17, 2014. † Deputy Legal Director of the American Civil Liberties Union (ACLU) and the Director of its Center for Liberty. Thank you to Jennifer Dalven for feedback on the text and to Rebecca Cadoff, Marvin Lim, and Kelsey Townsend for all their help in making sure my assertions in the lecture were correct and substantiated. 1 This Essay was written to be heard, rather than read; thus, it attempts to preserve the lecture largely as spoken. Sentence fragments and colloquialisms remain, crafted for emphasis in delivery. 1715 MELLING.35.5.docx (Do Not Delete) 6/17/2014 6:30 PM 1716 CARDOZO LAW REVIEW [Vol. 35:1715 I appreciate that I’m at a law school, giving a talk that will be published in a law review, but my talk will not focus on the law and doctrine. My talk is instead a call to your heart. From that, other changes will flow. First, the challenges of the times. Honestly, I’m left almost speechless by what is happening in the country as to abortion. The story is one of the states. Thinking just about last year, the nicest thing I can say is that it is a big hot mess. It was one of the worst years in recent decades. It was a big huge hot fiery mess. Here’s what’s happened: Arkansas passed a ban on abortions after twelve weeks.2 North Dakota banned abortions after six weeks, a time before many women even know they are pregnant.3 Four states—North Dakota,4 Alabama,5 Wisconsin,6 and Texas7—adopted requirements that doctors providing abortions have admitting privileges at local hospitals. That may sound okay, but you’ve probably heard how that story has been going down in Texas. The reality is that such requirements are not imposed on other surgical facilities, hospitals often refuse to provide privileges because of the controversy, and privileges often turn on other factors like local residency and a guarantee to admit a certain number of patients each year—requirements abortion doctors often don’t satisfy. Here’s what these requirements mean—the one clinic in North Dakota risked closing, the provision could close half the clinics in Alabama and Wisconsin, and in Texas, the doors keep closing, leaving women, particularly poor women, to travel vast distances for care. Ohio passed a provision barring public hospitals from providing written transfer agreements to doctors who provide abortions— agreements required as a condition of providing abortions.8 Indiana enacted a law that imposes regulations unnecessary even for surgical facilities on clinics that provide only medication abortions.9 Four more states restricted abortion coverage in their insurance exchanges, bringing the total of states that virtually ban abortions in their exchanges to twenty-four.10 And my personal favorite. South Dakota passed a law saying that its seventy-two hour waiting period—the time a woman by law must wait after receiving state mandated counseling 2 ARK. CODE ANN. §§ 20-16-1301 to -1307 (2014). 3 N.D. CENT. CODE §§ 14-02.1 to -05.1 (2014). 4 Id. § 14-02.1-04. 5 ALA. CODE § 26-23E-4(c) (2014). 6 WIS. STAT. § 253.095 (2014). 7 TEX. HEALTH & SAFETY CODE ANN. §§ 171.0031, 171.041 to 048, 171.061.064, 245.010.011 (West 2014); TEX. OCC. CODE §§ 161.052, 164.055 (West 2014). 8 OHIO REV. CODE ANN. §§ 3702.30, 3702.302 to .308, 3727.60 (LexisNexis 2014). 9 IND. CODE § 16-18-2-1.5(a) (2014). 10 Elizabeth Nash et al., Laws Affecting Reproductive Health and Rights: 2013 State Policy Review, GUTTMACHER INST., http://www.guttmacher.org/statecenter/updates/2013/statetrends 42013.html (last visited Apr. 18, 2014). MELLING.35.5.docx (Do Not Delete) 6/17/2014 6:30 PM 2014] LIFT THE SCARLET LETTER 1717 before getting an abortion—doesn’t run during the weekends or holidays.11 (More on that to come.) And this is on top of everything else—more than ninety lawsuits in the country protesting the requirement that insurance cover contraception (yes, contraception);12 requirements that providers show women having abortions an ultrasound and describe the image;13 laws to prohibit government dollars from going to facilities that provide abortion (the issue, to be clear, is not funding for abortion, but it is a ban on any funding going to an organization that, with other monies, provides abortion);14 the twenty-six states that require a waiting period before an abortion;15 and the eight that ban abortion in any insurance.16 It is an extraordinary time. And I thought it was a constitutional right we were discussing. I’m glad my fortieth birthday looked better than Roe’s. Yes, there are the courts. We are there. And it makes a difference. Clinics in Alabama,17 Wisconsin,18 Mississippi,19 and Indiana,20 for example, are still open because of litigation. But the list of measures passed is long.21 The list of what we can challenge is shorter. And the list of what we will win is shorter still. I feel confident we can win our challenges to the bans—or at least to the ones that bar abortion earlier in pregnancy. But don’t let those capture all your attention. They are distracting. In the face of the bans, other restrictions start to look reasonable. Who notices the seventy-two hour waiting periods or the insurance bans when states are banning abortions at six weeks? Indeed, who even notices the clinic closures? People paid attention to Texas, but that had a lot to do with Wendy Davis. There was no similar outpouring about Alabama or Wisconsin— 11 S.D. CODIFIED LAWS § 34-23A-56 (2014). 12 Challenges to the Federal Contraceptive Coverage Rule, ACLU (Apr. 8, 2014), http://www.aclu.org/reproductive-freedom/challenges-federal-contraceptive-coverage-rule. 13 E.g., N.C. GEN. STAT. §§ 90-21.80 to .92 (2014). 14 E.g., IND. CODE § 5-22-17-5.5 (2014). 15 GUTTMACHER INST., STATE POLICIES IN BRIEF: COUNSELING AND WAITING PERIODS FOR ABORTION (as of Apr. 1, 2014), available at http://www.guttmacher.org/statecenter/spibs/ spib_MWPA.pdf. 16 GUTTMACHER INST., STATE POLICIES IN BRIEF: RESTRICTING INSURANCE COVERAGE OF ABORTION (as of Apr. 1, 2014), available at http://www.guttmacher.org/statecenter/spibs/ spib_RICA.pdf (banning coverage except for lifesaving abortions). 17 Planned Parenthood Se., Inc. v. Bentley, 951 F. Supp. 2d 1280 (M.D. Ala. 2013). 18 Planned Parenthood of Wis., Inc. v. Van Hollen, No. 13-cv-465-wmc, 2013 WL 3989238 (W.D. Wis. Aug. 2, 2013). 19 Jackson Women’s Health Org. v. Currier, 940 F. Supp. 2d 416 (S.D. Miss. 2013). 20 Planned Parenthood of Ind. & Ky., Inc. v. Comm’r, Ind. State Dept. Health, No. 13-cv- 1335-JMS-MJD, 2013 WL 6181113 (S.D. Ind. Nov. 26, 2013). 21 E.g., Major Restrictions on Abortion Access Enacted 2013, ACLU (Dec. 16, 2013), http://www.aclu.org/reproductive-freedom/major-restrictions-abortion-access-enacted-2013. MELLING.35.5.docx (Do Not Delete) 6/17/2014 6:30 PM 1718 CARDOZO LAW REVIEW [Vol. 35:1715 where at least half the clinics risked closure but for the lawsuits. What happens to those restrictions in the courts? When you think about the courts, think about the backdrop. We live in a country where the highest authority on the federal constitution is the John Roberts Court. We live in a country where our ultimate success turns on the views of Justice Kennedy. We live in a country where the standard by which abortion restrictions are judged for their constitutionality is the undue burden standard. It is a standard so supple, shall we say, that judges have tremendous room to maneuver. It seems, as with pornography, they know it when they see it, and, in the case of abortion, they rarely see unconstitutionality.